State ex rel. BDFM Co. v. Ohio Dep't of Transp.

• Decision Date: 17 January 2013
• Docket Number: No. 11AP-1094,11AP-1094
• Parties: State of Ohio ex rel. BDFM Company et al., Relator/Plaintiff-Appellant, v. Ohio Department of Transportation, Respondent/Defendant-Appellee.
• Court: Ohio Court of Appeals

2013 Ohio 107

State of Ohio ex rel. BDFM Company et al., Relator/Plaintiff-Appellant, v. Ohio Department of Transportation, Respondent/Defendant-Appellee.

No. 11AP-1094

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

Rendered on January 17, 2013

(C.P.C. No. 10CVH-9680)

(REGULAR CALENDAR)

DECISION

Mansour, Gavin, Gerlack & Manos Co. L.PA., Anthony J. Coyne, and Brendon P. Friesen, for appellant.

Michael DeWine, Attorney General, Richard J. Makowski, and Bruce D. Horrigan, for appellee.

APPEAL from the Franklin County Court of Common Pleas

BRYANT, J.

{¶1} Plaintiff-appellant, BDFM Company ("BDFM"), appeals from the November 15, 2011 judgment of the Franklin County Court of Common Pleas denying BDFM's request for a writ of mandamus, its motion to compel, and its request for declaratory relief against defendant-appellee, Ohio Department of Transportation ("ODOT"). Because the trial court did not abuse its discretion in: (1) determining BDFM's evidence did not prove a legal taking of its right of access; (2) permitting certain questions during ODOT's direct examination of its witnesses; (3) admitting ODOT's documentary evidence submitted after the discovery period; (4) admitting ODOT witness Dirk Gross'slay opinion testimony; and (5) finding BDFM failed to prove a material mistake of fact at the time of contracting that warranted rescission of the parties' agreement, we affirm.

I. Facts and Procedural History

{¶2} BDFM, a partnership, owns real property parcel 36615-36625 Vine Street, located at the intersection of Vine Street and East 365th Street in Lake County, Ohio. The property borders a State Route 2 interchange ramp to the east, Vine Street to the south and E. 365th Street to the west. To the north is a residential development extending up to Stevens Boulevard.

{¶3} BDFM's land has two improvements, a multi-tenant office building and a parking lot for that building; two driveways provide direct access from the parking lot to E. 365th Street. Because the lot abuts the interchange ramp connecting State Route 2 and Vine Street, the Vine Street side of the property has no driveway. Prior to the construction subject of this action, drivers traveling Vine Street in either direction could access the property most directly by turning onto E. 365th Street and almost immediately making another turn into the building's parking lot.

{¶4} In 2006, as part of a larger redevelopment project involving a four mile section of State Route 2, ODOT initiated plans to improve the State Route 2 and Vine Street interchange. The proposed modifications included widening the stretch of Vine Street fronting BDFM's property from two lanes to three lanes to accommodate the addition of a center, dedicated left turn lane. The planned expansion required ODOT to obtain a five- foot strip of BDFM's property where it fronted Vine Street, as well as permission to use BDFM's parking lot during construction. The project did not impact BDFM's E. 365th Street driveways.

{¶5} In February 2007, ODOT contacted BDFM by letter explaining an upcoming highway improvement project required acquisition of "certain property rights" from BDFM. (Appellant's Appendix, exhibit No. 5.) After "a number of dialog[ue]s," the parties reached an agreement as to the property at issue on July 23, 2007, granting ODOT a permanent easement for the five-foot strip of Vine Street frontage and a temporary construction easement in exchange for $15,525 in compensation. (Tr. Vol. 1, 14.)

{¶6} The proposed Vine Street improvements also necessitated changes impacting a car wash and an auto detailing business located on the south side of VineStreet, across from BDFM. ODOT's plan was to eliminate the two businesses' existing Vine Street access drives and add a new rear service road for the businesses. Jamie Pilla, the owner of the car wash, and Lynn Fisher, the owner of the land and structure containing a tenant's auto detailing business, strongly objected to losing their direct access to Vine Street.

{¶7} After several meetings with ODOT representatives to discuss modifying the plans, Pilla contacted State Senator Timothy Grendell for help. On December 13, 2007, Grendell wrote ODOT's Deputy Director Bonita Teeuwean expressing his displeasure with the plan to remove Pilla's direct access to Vine Street and replace it with the rear service road. During the same period, ODOT Major Projects Coordinator Kathleen Sarli began conferring with others at ODOT, including Dirk Gross, administrator of the Office of Roadway Engineering, about alternatives to the original plan to replace the south side direct access drives with the rear service road. In early 2008, ODOT planners changed the Vine Street improvement project to include a median down the center of Vine Street in front of BDFM's property instead of the previously envisioned dedicated left turn lane. Once installed, the median prevented left turns between Vine Street and E. 365th Street and blocked left turns into and out of the south side businesses.

{¶8} As a result of the changed plans, BDFM filed its complaint with the Franklin County Court of Common Pleas on June 30, 2010 requesting a writ of mandamus to compel ODOT to initiate an appropriation case for taking BDFM's right of access, an order to compel ODOT to cut an opening in the median, and/or a declaratory judgment voiding the July 2007 easement agreement. ODOT filed its answer on August 11, 2010, refuting BDFM's claims.

{¶9} After the parties conducted extensive discovery, the trial court held a bench trial on October 25 and 26, 2010, which included testimony from several ODOT representatives and two of BDFM's partners, as well as "voluminous exhibits." (Decision and Judgment Entry, at 2.) After the parties filed post-trial briefs in lieu of closing arguments, the trial court issued its decision and judgment entry on November 15, 2011. The court denied BDFM's writ of mandamus, holding BDFM's evidence did not prove a legal taking of its right of access. The court further denied BDFM's request for declaratory judgment, finding "[n]o basis exists to 'rescind' the contract resulting in the granting ofthe easements and rights of way." (Decision and Judgment Entry, at 11.) Finally, the court found no legal authority to order ODOT to cut an opening in the median at the E. 365th Street intersection.

{¶10} On November 28, 2011, BDFM moved for reconsideration or a new trial, pursuant to Civ.R. 59(A)(6) and (7), contending either the weight of the evidence did not sustain the judgment or the judgment was contrary to law. On December 5, 2011, the trial court denied BDFM's motion.

II. Assignments of Error

{¶11} BDFM appeals, assigning five errors:

[I.] THE TRIAL COURT ERRED IN DENYING BDFM COMPANY A WRIT OF MANDAMUS ORDERING THE OHIO DEPARTMENT OF TRANSPORTATION TO BEGIN APPROPRIATION PROCEEDINGS IN LAKE COUNTY, OHIO TO COMPENSATE BDFM FOR TAKING OF ITS PROPERTY AND THE DAMAGES TO THE RESIDUE.

[II.] THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING ODOT TO LEAD ITS WITNESSES ON DIRECT EXAMINATION AT TRIAL.

[III.] THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING ODOT TO PRESENT DOCUMENTARY EVIDENCE AT TRIAL THAT WAS SUBJECT TO A MOTION TO COMPEL BUT WAS NOT PRODUCED BY ODOT UNTIL THE DAY OF TRIAL CAUSING SURPRISE TO THE APPELLANT.

[IV.] THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING ODOT TO PRESENT "EXPERT" TESTIMONY OF DIRK GROSS WHERE IT NEVER FURNISHED AN EXPERT REPORT.

[V.] THE TRIAL COURT ERRED IN DENYING BDFM COMPANY'S REQUEST FOR DECLARATORY JUDGMENT TO RESCIND THE AGREEMENT ENTERED INTO BETWEEN BDFM AND ODOT FOR THE APPROPRIATION OF ITS PROPERTY.

III. First Assignment of Error - Writ of Mandamus

{¶12} BDFM's first assignment of error contends installation of the Vine Street median constitutes an uncompensated taking of the company's property, so that "[t]hetrial court abused its discretion in denying BDFM a writ of mandamus requiring ODOT to initiate appropriation proceedings to acquire BDFM's property." (Appellant's brief, at 10.) ODOT refutes BDFM's contention that installation of the median constituted a taking of BDFM's right of access, arguing the median's installation was "an exercise of [the state's] police power in the regulation of the flow of traffic" and "reasonable means of access remain." (Appellee's brief, at 15.)

{¶13} Since granting or denying a writ necessarily requires the trial court "to exercise discretion, an appellate court must review its decision under an abuse-of-discretion standard." State ex rel. Smith v. Culliver, 186 Ohio App.3d 534, 2010-Ohio-339, ¶ 19 (5th Dist.), citing Leland v. Lima, 3d Dist. No. 1-02-59, 2002-Ohio-6188, ¶ 10, citing State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118 (1987); In re C.C.M., 10th Dist. No. 12AP-90, 2012-Ohio-5037, ¶ 5, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, (1983) (observing an abuse of discretion " 'connotes more than an error of law or judgment,' " but " 'implies that the court's attitude is unreasonable, arbitrary, or unconscionable").

{¶14} In the context of a taking, "The United States and Ohio Constitutions guarantee that private property shall not be taken for public use without just compensation. * * * Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings where an involuntary taking of private property is alleged." State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63 (2002), judgment modified in part on other grounds, 96 Ohio St.3d 379 (2002); Fifth and Fourteenth Amendments to the U.S. Constitution; Ohio Constitution, Article I, Section 19. Because "[m]andamus is an extraordinary writ that must be granted with caution," a party seeking a writ of mandamus must "establish entitlement to the requested extraordinary relief by clear and convincing evidence." State ex rel. Liberty Mills, Inc. v. Locker, 22 Ohio St.3d 102, 103 (1986); State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, ¶ 16, citing State...